Defective Highways

We have an extensive highway system in Michigan with the I-94 corridor being filled with trucks coming and going from Chicago. The pile up on I-94 this winter made national news and thankfully there were not more people tragically killed on that day. Our highway systems must be maintained by the government and their failure to do so causes wrongful death cases every year.

MCL 691.1402(1) is the Michigan statute that makes it a requirement for governmental agencies “having jurisdiction” over any highway maintain those same highways in “reasonable repair” so that it is “reasonably safe” and convenient for public travel. More importantly, the statute states that if a person sustains bodily injury or damage like a wrongful death, may recover damages. This is if the governmental agency has failed to maintain the road in reasonable repair.

Definition of Highway

Michigan statute defines a highway for purposes of liability as “a public highway, road, or street that is open for public travel.” This includes bridges, sidewalks, crosswals, and culverts on any highway. However, it excludes trees, utility poles and alleys. Michigan courts have held that a guardrail or concrete abutment located off the shoulder of the road did not fall within the definition of highway and therefore did NOT find that the governmental agency could be held liable. This has become a real debate with the implementation of cable barriers that the Department of Transportation claims saves lives on Michigan highways.


If you are facing a Michigan wrongful death case that may have occurred due to the government’s failure to maintain the shoulder, the Michigan Supreme Court ruled that a bicycle path on the inside shoulder of the roadway next to the actual roadway did constitute a public part of the highway and that the bicyclist could pursue an action against the Michigan Department of Transportation (MDOT) for injuries sustained when he struck a pothole on the path. Several of the Justices were critical of this decision and in a later ruling, the court excluded the shoulder from the scope of liability for governmental agencies. They stated that only the travel lanes of a highway are subject to the duty to repair and maintenance listed in MCL 691.1402 (1). This ruling applies retroactively, so a family needs to make sure that their Michigan wrongful death attorney is completely current on teh law in this area.

Sidewalks and Crosswalks

If a wrongful death occurred on a sidewalk or crosswalk, you will most likely not be able to bring a lawsuit against the State of Michigan or the County road commission. Your wrongful death attorney may be able to file a lawsuit against the local governmental agency that has responsibility for those areas. These areas are specifically included in the definition of highway for purposes of the defective highway statute.

If the death occurred in a crosswalk and there was a defect in the improved portion of the highway, then your family may be able to bring a lawsuit under the defective highway statute and it will not be barred by governmental immunity.

Highway Bicycle Paths

In Gregg v State Highway Dep’t, 435 Mich 307, 458 NW2d 619 (1990), The Michigan Supreme Court ruled that a bicycle path that was paved and located between the traveled portion of the highway and its paved shoulder was part of the highway designed for automobiles.  Unfortunately, the Court overruled this aspect in a later decision. Therefore, make sure that your wrongful death attorney investigates all of the possible defendants in your case if a death occurred while on a bicycle path.

Traffic Control Devices and Signs

When a Michigan wrongful death occurs due to a fault traffic control device or traffic sign, the victim will most likely NOT be able to bring a lawsuit against the state and county road commissions. Even when MDOT failed to install warning devices at a railroad crossing, they were not held liable for their failure to act. As we stated above, this is why it is supremely important that your wrongful death attorney name the proper parties in the lawsuit pursuant to the Michigan Wrongful Death Act. However, there have been cases where MDOT has been held liable for failure to install warning devices at a railroad crossing.

Design and Construction

Many drivers in Michigan will be shocked to hear that road commissions have no affirmative duty to design and construct highways that improve safety. State and county road commissions work hard to lower the traffic fatalities on Michigan roadways, but if they fail to properly design and construct a public highway they will have complete governmental immunity from those claims based on Michigan court cases.

Alleys, Trees, and Utility Poles

Alleys, trees, and utility poles are excluded from the definition of highway in MCL 691.1401 which means that if the accident involves any of these outside forces, governmental immunity will kick in and the state, county and local municipalities cannot be sued.

Snow and Ice

The winters in Michigan can be a nightmare on public highways. Motorists will most likely assume that counties have an obligation to keep the roads free of natural accumulations of ice and snow. They would be wrong. Many court decisions have affirmed that these organizations have no duty to remove the natural accumulation of snow and ice, even on an overpass. This was extended to the employees that actually drive the plow and salt trucks as well. This disturbing doctrine has been extended to the accumulation of water on the public highways as well. The only exception to this may be where there is an unnatural accumulation due to the negligence of the commission or state agency. A good example of this occurred when a city sidewalk was obstructed and made impassable due to the city’s snowplowing.

Knowledge of Defects

Yet another reason to retain the services of an experienced Michigan wrongful death attorney is the knowledge requirement if governmental immunity is to be shown. Governmental agencies have NO liability for deaths that occur due to a defective highway unless the agency knew, or in the exercise of reasonable diligence should have known.  This is very difficult to prove and will take all of the resources of an experienced attorney to demonstrate this to the trier of fact.

A conclusive presumption of knowledge of the defect and a reasonable amount of time to repair it arises if the defect was readily apparent to an ordinarily observant person for 30 or more days before the injury took place. MCL 691.1403. This simply means that if it can be shown that the defect was readily apparent and the governmental agency did nothing for more than 30 days, the notice requirement may have been met. Thus, proof regarding the nature of the defect and its existence for more than 30 days before the occurrence may cure a lack of actual notice.

Notice of Injury and Defects

Wrongful death claimants need to be very careful if one of the defendants might be a governmental agency. The victim or their personal representative must serve notice of the injury AND the defect within 120 days of the date the injury occurred. A longer notice period is provided for those under the age of 18 at the time of the injury (180 days) or those rendered physically or mentally disabled (not more than 180 days after the termination of the disability). MCL 691.1404(3). The notice must specify the exact location and nature of the defect, the injury sustained, and the names of the witnesses the injured person knew of at the time of the injury. MCL 691.1404(1)

In Blohm v Emmet County Bd of County Rd Comm’rs, 223 Mich App 383, 565 NW2d 924 (1997), the court of appeals held that the notice provisions of the GTLA, MCL 691.1404(1), (3), apply to wrongful death cases brought under the highway exception. Because the decedent was incapable of giving notice, the time limit of 180 days under MCL 691.1404(3) applied once the disability of death was removed by the appointment of a personal representative. 


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